Some of you may remember an earlier post of mine relating to a preliminary application in the case of Blair-Ford v CRS Adventures Ltd (http://www.piblawg.co.uk/post/2012/06/27/Warning-Low-Flying-Wellies-!.aspx)
The claim was brought by Mr Blair-Ford after he suffered catastrophic injuries whilst welly wanging at a mini-Olympics event run by the Defendant company. Unfortunately for the Claimant Mr Justice Globe dismissed his claim. Of note in the judgment are the judge’s observations about the importance of risk assessments. No such assessment had been undertaken in relation to the welly wanging event, although a general assessment had been conducted of the mini-Olympics as a whole.
Globe J noted the observations of Smith LJ in Uren v Corporate Leiasure (UK) Ltd [2011] EWCA Civ 66, summarising them in the following words:
“Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. Sometime, the failure to undertake a proper risk assessment can affect or even determine the outcome of a claim and judges must be alive to that and not sweep it aside. Risk assessments remain an important feature of the health and safety landscape and can provide an opportunity for intelligent and well-informed appraisal of risk and can form a blueprint for action leading to improved safety standards. That said, she [Smith LJ] has stressed that they are not a panacea and are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way. They may be a less effective tool where a lot of variables come into play.”
With the above comments in mind, Globe J found that in the present case there were a “lot of variables” and as such the absence of a formal risk assessment could not be criticised. It was found that the carrying out of a “dynamic risk assessment” was acceptable, i.e. D’s instructors were trained to carry out on-site risk assessments as part of an on-going and “dynamic” process. Conditions frequently changed and the relevant instructors had to use their initiative to assess risk as and when matters arose.
All sensible stuff it seems to me and Defendants will do well to remember that the lack of a written risk assessment need not be fatal to the defence of any claim. What is important is to be able to demonstrate that one is conscious of potential risk: that does not necessarily require the slavish completion of forms in all circumstances.
In any event, Mr Blair-Ford’s injury was unforeseeable. The learned judge’s view was that in this case the risk that needed to be foreseen was the risk of serious injury and not just the risk of any injury. In the circumstances there was no foreseeable risk, the possibility of serious injury being at most “a mere possibility which would never influence the mind of a reasonable man”.